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Judgment
S.S. Subramani, J.—This second appeal is by the decree-holder in O.S. No. 435 of 1979, on the file of the District Munsif''s Court,
Tiruvannamalai.
A decree was passed against the second respondent herein on 8.8.1979. Execution petition was filed on 3.12.1980. The property, which is the
subject-matter of the suit, was attached on 22.12.1980. At that time, the present Execution Application No. 621 of 1981 was filed by the first
respondent herein that the property is not liable to be attached, he having purchased the same as per sale deed dated 15.3.1961. According to
him, the second respondent, who is none other than his own son, has no right over the property purchased by him on 15.3.1961, the same being
his self-acquisition. He also contended that he purchased the property for a sum of Rs. 4,000 and that he is in enjoyment of the same as absolute
owner. Ex. A-1 is the sale deed. Ex. A-2 is the house-tax demand notice. Exs. A-3 and A-4 are house-tax receipts. Ex. A-5 is the electricity bill
and Ex. A-6 is a bank receipt.
The decree-holder, i.e., the appellant herein contended that the property is not the self-acquisition of the first respondent herein, and that the
defendant in the suit, who is the second respondent herein, is also entitled to a right over the property. He contended that after the purchase, the
claimant himself has mortgaged the property in favour of a stranger for a sum of Rs. 5,000 stating that the property belonged to them jointly. That
mortgage was redeemed, and subsequently another mortgage was also executed, making the second respondent herein also as a party to the
same. Therefore, according to the appellant, the property in question is a joint family property over which the second respondent herein is also
entitled to a share, and the same is liable to be attached and sold.
In execution application the claimant examined himself as P.W. 1, and on behalf of the decree-holder a witness was examined as R.W. 1. On
behalf of the claimant, Exs. A-1 to A-6 were marked, and on behalf of the decree-holder, Exs. B-1 and B-2 were marked.
The executing court dismissed the claim application relying mainly on the statements in Exs. B-1 and B-2, which are admittedly mortgage deeds
executed by the claimant along with his son (judgment-debtor), wherein it is stated that the property belong to them jointly. In view of the said
statement, the executing court held that the contention put forward by the claimant that the property belonged to him absolutely cannot be
accepted, and accordingly it dismissed the claim petition.
Against the said order, the claimant filed C.M.A. No. 3 of 1982, on the file of the Subordinate Judge''s Court, Tiruvannamalai. The lower
appellate court held that as per sale deed dated 15.3.1961 (Ex. A-1), the claimant is entitled to absolute title. It also held that so long as the
decree-holder has no case that the property was acquired with joint family funds or that the property had been thrown into the common hotchpot
of the joint family, it cannot be treated as a joint family property. It also held that even if the property is held to be a joint family property, the claim
should not have been dismissed. The lower appellate court set aside all the findings of the executing court and allowed the appeal. Consequently,
the claim petition was allowed. It is against the conflicting decisions, this second appeal has been filed.
The following substantial questions of law have been raised for consideration in this second appeal:
(1) Whether the lower appellate court is right in accepting the oral evidence, which is inconsistent with the contents of the documentary evidence
found in Exs. B-1 and B-2?
and
(2) Whether the contents in Ex. B-1 and Ex. B-2
denote joint ownership or not?
The main ground urged on behalf of the appellant/decree-holder is that Exs. B-1 and B-2 are against the claim put forward by the first
respondent wherein there is an admission that the property belongs to the joint family. So long as there is an admission that the property is a joint
family property, the admission has to be given more importance than the statement contained in Ex. A-1. How far the said contention can be
accepted, has to be considered.
Admittedly, Ex. A-1 stands in the name of the first respondent. The decree-holder has no case that for getting Ex. A-1, the first respondent
utilised any joint family property assets or funds. In fact, no evidence has been let in to show that the joint family of the first respondent had any
property from which the property covered under Ex. A-1 could be purchased. From a reading of Ex. A-1, it is clear that the same was purchased
by the first respondent with his own funds.
What is the effect of the statements in Exs. B-1 and B-2 will have to be considered. Those documents are mortgage deeds executed by the
first respondent in which the second respondent is also made a party. P.W. 1 has spoken about the circumstances under which his son also was
made a party. According to him, the creditor insisted that his son also should be made a party to the document. In fact, there is a statement in both
the documents that the property was purchased by the first respondent in his own name. It is thereafter there is a statement that both the executants
are entitled to the property. In The Commissioner of Income Tax, Madhya Pradesh and Bhopal Vs. Sodra Devi, , it was held thus:
Where it is stated in adeed of release that, by reason of sarvaswadanam marriage, the appellants were entitled to all movable and immovable
properties belonging to Illom and therefore the executant was executing the release deed conferring all the rights and claims they had obtained over
the Illom pro-properties by the sarvaswadanam form of marriage, the document, in terms confirms the pre-existing rights of the appellants and
where they had no pre-existing rights, the document did not convey any interest to them.
The same was followed by the Kerala High Court in the decision reported in Sarojini v. Santha Trading Co. and Ors. 1969 K.L.T. 412 and it was
held thus:
A recital in confirmation of pre-existing rights in a person, who had no such right in fact, would not convey any right in the property to him. A mere
recital that the property belongs to both the husband and the wife will not, therefore, convey any interest in the property of the wife to the husband.
In view of the said proposition of law, unless the second respondent shows that he had also pre-existing right in the property purchased under Ex.
A-1, the mere recital in Exs. B-1 and B-2 that he is also a co-owner of the property along with his father will not convey any right on him.
The only other method by which the second respondent can claim any right over the property is by proving that the property was thrown into
the common hotchpot by the first respondent. The decree-holder has no such case. His only case is that the property is joint family property. Ex.
A-1 disproves the same.
In N.R. Raghavachariar''s Hindu Law - Eighth Edition, 1987, at page 213, the learned Author has summarised the law regarding the
circumstances under which a separate property can be treated as a family property, after taking into consideration the various decisions on that
point. The relevant portions read thus:
It is an essential postulate in regard to blending that what is blended is a beneficial asset.... No registered document is necessary for blending.... No
formalities whatsoever are required for impressing the character of joint family property on the self-acquisition. A clear expression of intention to
impress that character in whatever way it is expressed, such as, for instance, a statement in a deposition or an affidavit or by conduct would be
sufficient.... Such blending is always in favour of all the coparceners and joint family property and is not restricted to some of them. It must be
established that there was a clear intention on the part of the coparcener to waive his separate rights.... Such intention cannot be inferred from the
physical mixing of the self-acquisition with joint family property or from the other members being allowed to use the property jointly with the
acquirer or from their utilising the income therefrom out of generosity or kindness of the holder, he not being bound to support them or from failure
to maintain separate accounts. An act of generosity or kindness cannot be regarded as an admission of a legal obligation. The mere fact that the
acquisitions were not separately entered by the coparcener in his account books or that no separate account of the earnings from those properties
was maintained by him cannot rob the properties of their character of self-acquired property. So also the mere fact that some amount of joint
family funds was used for discharge of the debts of the acquirer is also of no consequence.... From the mere fact that a father having selfacquired
property allows his adult son to live with him or used its income for the son''s support (The mere fact that the sons are allowed by the father to give
him some help in his own business does not make it joint family business), an inference of intention on the part of the father to treat his selfacquired
family property cannot be drawn.... An intention to throw the separate property into the common stock and the waive all separate rights in respect
thereof, must be clearly established and will not be inferred from the owner allowing joint use of the property to the other co-parceners merely
from kindness or affection.... starting that mere fact that a member included his own property with joint family property in a mortgage document
executed by him for raising funds for the family does not establish that he treated his own property as joint family property; holding that mere
mixing of separate property with joint family property without the intention to treat the separate property as joint family property is not sufficient.
Such intention cannot be inferred merely from acts of kindness or affection; .deciding merely dealing with the property as joint family property is
not sufficient.... In order to convert separate property into joint family property the intention of the acquirer to abandon the separate claim must be
established but such abandonment cannot be inferred from the mere fact that other members of the family were allowed to use the property jointly
with himself or that the income of the separate property was utilised out of generosity to support persons whom he was not bound to support or
the mere failure to maintain separate accounts. Nor will such an intention be inferred where the coparcener allows joint possession and enjoyment
of his separate property, not knowing, owing to the uncertainty of judicial opinion on the matter, that the property in question is one, in which the
other members cannot claim any interest.... According to Ramaswamilyer v. Subramania Pillai 1962 Ker. L.J. 929, the character of self-acquired
property cannot be held to have been altered into that of joint family property either by the other coparceners being allowed to use it jointly or
there being some declarations not uniform or consistent regarding the property being joint family property. V. Venkataswamy and Others Vs. V.
Radhakrishna Reddi and Others, : held that neither the fact that the father made a statement that the property is joint family property of himself and
his sons nor the fact that the sons were permitted to enjoy the income of the properties would impress the same with the joint family character if
from the circumstances of the case it could be inferred that there was no intention on the part of the father to convert the self-acquired property
into joint family property....
I have already said that P.W. 1 has deposed as to the circumstances under which his son also joined in the execution of the documents. The
documents are in the nature of mortgages executed by the owner. Naturally he had to obey the dictates of his creditor. If the creditor insists that
the son should also be made a party, that will not show an intention on the part of the claimant that he intended to waive his separate right over his
self-acquisition.
The lower appellate court has taken into consideration the above facts and held that the property absolutely belonged to the first respondent. I
do not think that any error has been committed by the lower appellate court in allowing the claim petition. Both the substantial questions of law are
therefore, answered against the appellant. The second appeal is dismissed with costs.